A tribute to Merdeka

The wind of change is nigh – the horizon crackles with spontaneous energy feeding into its impending arrival. You can feel the pressure in the atmosphere; sense the electric in the air; hear the whisper of random gusts, all gathering momentum for the coming storm.

Something changes in you too. Excitement gushing through you veins, your instinct thumping to be released; and your feet answered the call. You are now moving to the rhythm of your instinct, the rhythm of the storm! Before long, thousands are running with you, sweeping you up in the stampede for liberty, for freedom, for Merdeka!

*****

Your forefathers undertook a similar journey 55 years ago, but they fought a different enemy then. They struggled against a corporeal form, an external threat, and their victory has been well documented in the lore of your people. The narrative of their struggle forms part of the collective psyche of your community, binding the diverse into a congruent unit. But for too long, your people have relished in the success of your forefathers, reciting the narratives of their struggles until the morals were wrung out of it. Soon the spirit of camaraderie settled; and a mist of content blanketed the horizon.

The seed of your new enemy took root under the veil of this mist, poisoning the soil beneath your feet as you slumbered, feeding your dreams with prosperity and pride. It is also amidst this dream-time that you were born. No, you are not to blame as you could not have realized the insidious influences of the enemy. It has no name and cannot be seen, yet it nourishes you, poisons you, as it slithers its way to encompass your psyche.

*****

The procession grows in strength as more and more awakened from their slumber to join the march for liberty; but your weary body is taking its toll, your pace diminishing, and soon you were left behind. Slowing to a halt, the thunderous roar of the procession retreated into the distance, leaving only the rhythms of your laboured breathe and throbbing heart audible. You contemplate on the journey thus far – What was it that beckons your feet? Who or what is the enemy?

The retreating mist reveals a landscape scared by years of neglect; the empty shells of your kinsmen that have yet to awake stand testament to the corrupting influences of your enemy. You call on them, beckon them to join you in your march for liberty, but their hollow shells did not react, they hear but do not listen; they see but are not aware.

*****

As the horror of the corruption of your people lays bare before you, a realization struck – That the enemy has neither name nor form; it can neither be pinned nor struck down. Yet it is omnipresent, constantly turning unity into dissent, ambition into greed; pride into arrogance; tolerance into apathy and wisdom into ignorance. The enemy is within you, it feeds off the idleness of tranquility, yet it seeks to destroy the only thing that is important – peace. You finally understood, the enemy cannot be defeated, but only enlightenment can keep it at bay.

The struggles can never be over; the march of your forefathers is but the beginning, the narrative of your people does not end with the defeat of colonialism but it must be written by every generation to come, each adding depth to the collective psyche of your people. The struggle against corrupting influences is an ongoing endeavour and only through enlightenment can true liberty be obtained.

*****

Raindrops greet your dusty cheek and cleanse your soot stained body, breathing renewed vigour for the march ahead. The rain has also awaken your kinsmen, their feet fumbling as if uncoordinated; but you know they have heard it as well, the rhythm of their instinct, the rhythm of the storm! You extended your hand and called on them once again, and this time they listened.

The wind of change has arrived. Tens of thousands are now running with you, for enlightenment, for freedom, for Merdeka!

Merdeka means independence, not only from colonialism, but also of the mind from the shackles of ignorance. The essay is dedicated to the fighters of our new Merdeka, to those who labour out of conscience to build a shared future, of tolerance, understanding and moderation. You may get tired along the way; you may get frustrated at times, but know that your work has not gone to waste, it only takes one candle to bring light to absolute darkness.

Lua Bo Feng

22/8/11

Proportionality - The Magic Word for Interfaith Harmony

You really have to respect PAS for their single-mindedness. At a time when you would expect the opposition to put up a common front, PAS leaders were loyal to their cause to a fault. While PAS youth support of JAIS’s raid on the church reminds us of the transient nature of the Pakatan alliance; for PAS, this is a stark reminder to their supporters that they do walk their talk.

PAS youth leader, Nasrudin Hassan’s statement (reported by the Star 10/8/11) is a carefully postured response to the raid. In an attempt to douse the potentially inflammatory topic, he reminded critics to remain impartial as JAIS was only carrying out their duty in policing the akhlak of Muslims and protecting the sanctity of Islam. Such posturing highlights a common theme in interfaith and interracial conflicts in Malaysia – ‘Group sovereignty and autonomy’, in simpler terms – I take care of my problem, you take care of yours.

We see this in the politics of Barisan Nasional, where each race has a representative component in the alliance, each component looking out for the interests of their subjects.

We see this in the education system of Malaysia, where vernacular schools cater for the educational requirements of each linguistic group in the country.

We also see this in our legal system, where a parallel Syariah court was created with exclusive jurisdiction over its own subject – Muslims.

Such policies are pervasive in our society because it provides a platform for a multiracial community to reconcile their differences – by not dealing with it. Nasrudin’s statement echoes this theme of unity through division by justifying the church raid with legal authority while sidestepping the central reason for the conflict – the need to strike a balance between different groups’ rights and needs.

Worst of all, Nasrudin’s support for the church raid is counterproductive to his party’s newfound progressive image. It is a natural conclusion to Nasrudin’s statement that the rights of Muslims not to be proselytized overrides any other groups’ right to practice their religion in peace and harmony, and all other religious practices had to be subjected to disproportionate disruption at the hint of the possibility of proselytization of Muslim.

Article 3(1) of our constitution reads:

‘… but other religions may be practiced in peace and harmony in any part of the Federation.’

Not

‘… but other religions may be practiced in peace and harmony with Islam in any part of the Federation.’ [Emphasis and italics added]

To subject other religious practice to JAIS’ raid every time a suspicion of proselytizing of Muslim arise is a fundamental breach of article 11 freedom of religion, article 10 freedom of assembly and article 5 liberty of the person, of our constitution. The magic word for balancing rights in a multiracial society is ‘proportionality’. You don’t raid a church based on suspicion of proselytizing of Muslims; you raid it because proselytizing is happening and there is no alternative measures available.

There are those who argue that there could have been proselytizing of Muslims happening, and we can only conclude whether to support JAIS’ action or not depending on the evidence collected. This kind of arguments are not worthy of a reply because such arguments ignore the most fundamental concept of procedural justice – that innocence is guaranteed until proven guilty.

Also, the argument that JAIS was merely doing its job is the same kind of argument the government used to defend the police high-handed measures in the crackdown of Bersih 2.0. Imagine the chaos that would ensue if the police exercise their power to arrest a gathering of more than 5 persons without permit arbitrarily, I personally would have been arrested many times over. It is a common understanding in legally developed societies that power conferred by legislation cannot be used like a blanket bomber; just because the law allows you to conduct raids does not mean you do it whenever you can. Such arguments are suitable only for Neolithic societies.

Democracy is not about the submission of minority to the views of the majority. It is about tolerance and balancing rights of diverse opinions. We do not live in autonomous bubbles of reality; Malaysia is a conglomeration of many diverse societies that seek to live in harmony with one another. As such, to expect submission every time our bubbles cross path is not the recipe for a harmonious existence. This is tyranny of the majority.

Lua Bo Feng

14/8/11

In the spirit of Ramadhan, let's address the white elephant in our constitution

The constitution is not supposed to be something difficult to understand. It is written (in large parts) in plain language, it is relatively well structured – 13 parts with 13 schedules, and most importantly, it is not the thickest of documents I’ve had to read. But it is often made difficult by politicians, lawyers, judges, and people like me – teachers.

We made it difficult because we tell you first; you must go through years of legal education to understand fundamental legal methods and logic. Then you must not read the constitution at face value – there are methods of interpretation, aids to construction, intrinsic principles of constitution, volumes of case laws, journals, and the historical backdrop of the formation of the constitution to digest before you can say anything accurate about the constitution.

While all of the above is true, we must never forget that our constitution is not some grandiose tome meant for legal elites only, it is a document for every Malaysian. In fact, we lawyers can learn a thing or two if we only remember not to over complicate things when reading the constitution.

The simplicity we must never forget is that our constitution says what it says. We see ambiguities and conflicts because we presume what the constitution should say. Take for example, article 3(1) of the Federal Constitution says:

“Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.”

Those who want Malaysia to be an Islamic state argue that this article is an unequivocal statement that Malaysia is an Islamic state. This is not correct. While what amounts to an Islamic state is a debate in itself, an Islamic state’s constitution should recognise the supremacy of Islamic laws; and any laws that contradict basic Islamic tenets should be null. Just take a look at articles 1 & 2 of the Iranian constitution and the stark differences with our constitution cannot be ignored.

On top of that, article 3(4) of our constitution specifically provides that Islam being the religion of the Federation mentioned in article 3(1) cannot be used to trump any other articles in the constitution. (As anyone with logic should know, a specific provision trumps a general provision.) This affirms the inferior status of article 3 to article 4, which provides for the supremacy of our constitution over any other laws in the Federation.

On the flip side, to say that Malaysia is a secular state is also rather farfetched. Again, what amounts to a secular state is also subject to debate, but central to secularism is the idea that religion should be separated from politics and the day to day running of the state.

Article 3(3) of our constitution identified the Yang di-Pertuan Agong and the ruler of each of the Malay states as the head representing the Islamic religion. While the Ninth Schedule of the Federal Constitution omitted Islam as part of the Federal legislative jurisdiction; it specifically provided that Islamic laws are within the purview of states’ legislative function. The subsequent creation of a Syariah Court by article 121(1A) further blurs the separation of religion from the governance of a state.

So, what does our constitution actually say in regards to Islam and the Federation? Not a lot really. It says that we have something to do with Islam, but it definitely does not say that Islam is the ‘official’ religion of the Federation; neither does it says or even suggests that we are a secular federation.

Too often we read the constitution looking for what we want to find, but it is not always there, and it does not always say what we want to hear. We cannot expect our constitution to be complete or be too specific about everything, it says what it says, and that’s it. It leaves large amount of empty spaces between the specifics, for us to breathe maybe, for us to grow, perhaps?

LBF

1/8/11

This article is written, and also meant to be read, over a cup of coffee. To treat everything said above as absolutely true would do injustice to the reality that you really do need a law degree to even begin to understand the constitution, and most with a law degree still don’t. For a more accurate account of article 3 of the Federal Constitution, see the tome of an article* written by Tommy Thomas found at http://www.malaysianbar.org.my/constitutional_law/is_malaysia_an_islamic_state_.html

(*caveat: for lawyers only)